Summary: The Ombudsmen will not investigate this complaint relating to the treatment of a person who lacked the capacity to make decisions about their own care. The complaint relates to matters that occurred more than 12 months ago and, as such, are late for our consideration.

The complaint

1. Mr and Mrs X complain about the management of Mrs X’s mother’s, Mrs Y’s, care by staff at Grenoside Hospital, from Sheffield Social Services and at Astrum House Nursing Home between May 2018 and April 2019. In particular, Mr and Mrs X complain about the restrictions placed upon Mrs Y which, they said, were unreasonably influenced by Mrs Y’s husband.
2. Mr and Mrs X said the organisations’ treatment of Mrs Y led to a rapid decline in her health and her premature death. Mr and Mrs X said they were caused extreme distress by these events. Further, they said they have not been able to grieve because of the continued actions of Mrs Y’s husband.
3. In bringing their complaint to the Ombudsmen Mr and Mrs X said they would like confirmation that Mrs Y’s husband “was the reason for many of the circumstances and actions and that he acted unreasonably”. They would like an explanation of the services’ views of Mrs Y’s husbands “inappropriate actions and why he was not taken to task”. In addition, they would like to see evidence relating to key decisions.

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The Ombudsmen’s role and powers

4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).

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How I considered this complaint

6. I considered Mr and Mrs X’s written complaint and further information they provided via email. I also considered papers we obtained from Sheffield City Council (the Council) and Sheffield Health and Social Care NHS Foundation Trust (the Trust). In addition, I considered relevant legislation. I shared a confidential version of this draft decision with Mr and Mrs X and considered their comments on it.

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What I found

7. Mental health services diagnosed Mrs Y with dementia in early 2016. It is reported that Mrs Y’s mental state deteriorated and, in May 2018, professionals requested she be assessed under the Mental Health Act 1983 (the MHA). Mr and Mrs X said this situation was driven by Mr Y. An assessment took place a couple of days later and led to Mrs Y’s detention under the MHA and admission to hospital.
8. At the end of July 2018 Mrs Y remained in hospital. A Best Interests meeting took place. The decision maker decided Mrs Y needed full time nursing care in an appropriate facility. Mr and Mrs X had wanted Mrs Y to come to live with them.
9. In September 2018, following a period of extended leave at Mr and Mrs X’s house, Mrs Y was admitted to Astrum House. Astrum House placed restrictions on the times Mr and Mrs X could visit Mrs Y.
10. Mrs Y remained there until she sadly died in late April 2019.
11. In the middle of October 2018 Mr X complained to the Council. The complaint focused on poor communication from a particular Social Worker and difficulties contacting their team. The Council replied around a month later. In its response it noted Mr X could let it know if he remained dissatisfied and also provided contact details for the Local Government and Social Care Ombudsman (LGSCO).
12. Mrs X complained to the Trust in January 2020. She noted the complaint was belated “due to the severe trauma and stress that the death of my mum has caused me.” Mrs X complained about various issues including the decision to detain Mrs Y, the process of establishing her best interests, and her care at Astrum House.
13. The Trust replied in July 2020. It responded to the issues which related to its responsibilities. The Trust noted it had shared Mrs X’s complaint with the Council and another council (in respect of her concerns about Astrum House) and asked them to respond to the issues. The Trust also included contact details for the Parliamentary and Health Service Ombudsman (PHSO).
14. Mrs and Mrs X complained to PHSO at the end of November 2020.

Findings

15. The evidence I have seen suggests Mr and Mrs X were aware of their concerns about the management of Mrs Y’s care at the time the events took place. Specifically, they knew of their concerns about:

• the decision to detain Mrs Y in May 2018,
• how Mrs Y’s best interests had been established by the end of July 2018, and
• Mrs Y’s care in Astrum House and the visiting arrangements in the months after September 2018.

16. Mr and Mrs X complained to PHSO in November 2020, more than 12 months after they knew of all aspects of their complaint. As such, the complaint is late. We have discretion to investigate late complaints and I have considered whether we should do so in this case.
17. As noted above, Mr X was able to make a complaint to the Council in October 2018. At this time Mrs Y had been detained, had been cared for in hospital, had been through the Best Interests process and had been in Astrum House for around a month. Mr X received a fairly prompt response and this included signposting to LGSCO.
18. I have not seen evidence to suggest that Mr and Mrs X could not have also raised their other concerns at around this time or soon after. Had they done so it seems likely they would have been in a position to complete the local complaints processes and come to the Ombudsmen considerably sooner than November 2020. I have considered the explanation Mrs X provided when she complained to the Trust in January 2020. However, this explanation does not relate to the circumstances in late 2018. Therefore, I have not found a good reason why the Ombudsmen should consider this late complaint.
19. In addition, even if there were reasons to exercise discretion and investigate, it is apparent that the Ombudsmen would not be able to achieve much of what Mr and Mrs X are seeking. Section 26 of the MHA sets out who should be considered a person’s Nearest Relative. The list is in strict order and the person who is highest on the list is the person’s nearest relative. From the evidence I have seen it appears this list was applied in Mrs Y’s case. The Ombudsmen do not have the authority to amend the MHA or change who can be considered as Nearest Relative for the purposes of applying to a First Tier Tribunal.
20. Similarly, section 4 of the Mental Capacity Act 2005 (the MCA) sets out how a person’s best interests should be considered. This includes taking account of the views of anyone interested in their welfare. That people may have very different views does not mean they do not all need to be considered. The Ombudsmen cannot change the MCA or its Code of Practice, and would not be able to change the processes that need to be followed when considering a person’s best interests. Similarly, the Ombudsmen could not alter the scope or powers of the mental capacity advocate role which, again, are set out in law by the MCA.
21. Further, in complaints about best interests the Ombudsmen do not complete their own assessments of the person’s needs and wishes, or arbitrate in disputes and give a view on whose opinion was more valid. Rather, the Ombudsmen’s role is to consider whether the professionals followed the processes which are set out in the relevant legislation and guidance. In this regard, an Ombudsmen investigation on a complaint about the Best Interests process would focus entirely on the actions of the organisations and professionals within their jurisdiction and would not include any commentary or criticism of family members.

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Decision

22. Based on the available evidence we should not investigate Mr and Mrs X’s complaint as it is late and we could not achieve the outcomes they want. I have closed our file on this basis.

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Investigator's decision on behalf of the Ombudsman